CA-2024-001892 - [2025] EWCA Civ 987

The FTT judge’s finding was, therefore, that the effect of deportation of his father on A satisfied both the “unduly harsh” test and the “very compelling circumstances” test. But even on that basis Mr Malik submits that there was no error of law. He argues that a fact-finding judge is entitled to go straight to the “very compelling circumstances” test and find such circumstances without making any finding of an unduly harsh effect on a qualifying child or partner or any other aspect of Exception 1 or Exception 2. He derives that from three authorities: NA (Pakistan) v SSHD [2016] EWCA Civ 662: [2017] 1 WLR 207; HA (Iraq) v SSHD [2022] UKSC 22; [2022] 1 WLR 3784; and Yalcin v SSHD [2024] EWCA Civ 74; [2024] 1 WLR 1626.

NA (Pakistan) concerned two appellants, each of whom had received sentences of at least 12 months but under 4 years imprisonment (“medium offenders”). The Court of Appeal pointed out that on a literal reading of s.117C the right to resist deportation on the grounds of “very compelling circumstances over and above” those described in Exceptions 1 and 2 only applies to offenders whose sentence of imprisonment was for longer than 4 years (“serious offenders”), not to those in the 1-4 year category. This court considered that Parliament cannot have intended such an anomalous distinction and treated s 117C(6) as containing a drafting error. The court held that, on a proper construction of s.117C(3), it provides that for medium offenders the public interest requires deportation unless Exception 1 or Exception 2 applies, or unless there are very compelling circumstances over and above those described in Exceptions 1 and 2.

The logical consequence of this is that an appellant (whether in the medium or serious offender category) may be able to show very compelling circumstances even where neither Exception 1 nor Exception 2 applies. It is not difficult to imagine such a case. Suppose, for example, a couple have a daughter with Down’s Syndrome in her teenage years. The father receives a sentence of six years’ imprisonment. By the time he is approaching the end of the custodial period of that term of imprisonment his wife has died, but the child with Down’s Syndrome has now reached the age of 18. Suppose further that the Appellant does not come within Exception 1. The child, because she is no longer within the definition of a “qualifying child” in s 117D(1), cannot bring the case within Exception 2 either. Nevertheless the Appellant would be able to argue that the need for him to act as primary carer for his daughter constituted very compelling circumstances over and above those described in Exceptions 1 and 2. Mr Tabori, while cautioning against the assumption that such an argument would necessarily succeed on the facts, accepted that there would be no jurisdictional bar to the FTT considering it on its merits. Put shortly, the phrase “over and above” does notalways mean the same as “in addition to”. That is a subject to which I shall return later when considering the case of Yalcin.

HA (Iraq) concerned two appeals by foreign national offenders who had been sentenced to terms of imprisonment of 12 and 18 months respectively and were thus “medium offenders”. In each case a deportation order was made and appeals to the FTT and UT were dismissed. Further appeals to this court and to the Supreme Court were likewise unsuccessful.

At paragraph 5, in a passage on which Mr Malik placed great reliance, Lord Hamblen JSC (with whom the other members of the Supreme Court agreed) said:-

“5.

The very compelling circumstances test requires a full proportionality assessment to be carried out, weighing the interference with the rights of the potential deportee and his family to private and family life under article 8 of the European Convention on Human Rights (“ECHR”) against the public interest in his deportation. It follows that a proportionality assessment will be carried out in all foreign criminal cases, unless the medium offender can show that Exception 1 (which relates to length of lawful residence and integration) or Exception 2 applies, in which case the public interest question is answered in favour of the foreign criminal, without the need for such an assessment.”

He continued:-

“6.

The principal legal issue raised by these appeals in relation to the unduly harsh test is whether the Court of Appeal erred in its approach by failing to follow the guidance given by the Supreme Court in KO (Nigeria) and, in particular, by rejecting the approach of assessing the degree of harshness by reference to a comparison with that which would necessarily be involved for any child faced with the deportation of a parent.

7.

The principal legal issues raised by these appeals in relation to the very compelling circumstances test are the relevance of and weight to be given to rehabilitation and the proper approach to assessing the seriousness of the offending.”

Both this court and the Supreme Court in HA (Iraq) referred to the judgment of Lord Carnwath JSC in KO (Nigeria) v SSHD [2018] UKSC 53; [2018] 1 WLR 5273, where he said at paragraph 23:

“... the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932, [2017] 1 WLR 240, paras 55, 64) can it be equated with a requirement to show “very compelling reasons”. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.” [emphasis added]

In HA (Iraq) Lord Hamblen said at [31]:-

“I consider that far too much emphasis has been placed on a single sentence in Lord Carnwath’s judgment [in KO (Nigeria)] and that if his judgment is considered as a whole it is apparent that he was not intending to lay down a test involving the suggested notional comparator. It is correct that in para 23 of his judgment Lord Carnwath was recognising that the unduly harsh test involves a comparison, but the comparison made was between the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals and the greater degree of harshness which is connoted by the requirement of “unduly” harsh. As Underhill LJ pointed out, Lord Carnwath was not seeking to define the level of harshness which is “acceptable” or “justifiable”. Had this been his intention he would have addressed the matter in considerably more detail and explained what the relevant definition was and why. Similarly, if he had been intending to lay down a test to be applied in all cases by reference to the suggested notional comparator he would not only have so stated but he would have explained the nature of and justification for such a test. The reference to the harshness which would be involved for “any child” is to be understood as an illustrative consideration rather than a definition or test.”

Lord Hamblen went on to reject the submission on behalf of the Home Secretary that a test involving a notional comparator child would be used. He observed at [37] that such a test is “potentially inconsistent with the duty to have regard to the “best interests” of the child in question as a primary consideration” in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009. He added at [38] that “the notional comparator approach gives rise to the risk that a court or tribunal will apply an exceptionality threshold”. At paragraph 39 he said:

“The Secretary of State’s suggested approach is likely to lead to perverse results. The respondents give the example of a case involving the impact of parental deportation on an eight year old who cohabits and has a very close relationship with the parent. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be considerable, it would allow the significant effect of that deportation to be treated as acceptably harsh and thereafter discounted from further consideration. This can be contrasted with the case of a 17 year old who lives separately from the parent and whose relationship is at the very lowest end of the genuine and subsisting relationship spectrum. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be of much more limited significance, it is likely to be easier to satisfy the unduly harsh test because it will be more straightforward to identify particular features that take the case above the much lower baseline level than the higher bar set for the highly dependent eight year old.” [emphasis added]

At [41] to [44] he said:

“41.

Having rejected the Secretary of State’s case on the unduly harsh test it is necessary to consider what is the appropriate way to interpret and apply the test. I consider that the best approach is to follow the guidance which was stated to be “authoritative” in KO (Nigeria), namely the MK self-direction:

“… ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”

42.

This direction has been cited and applied in many tribunal decisions. It recognises that the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals involves an “elevated” threshold or standard. It further recognises that “unduly” raises that elevated standard “still higher” - ie it involves a highly elevated threshold or standard. As Underhill LJ observed at para 52, it is nevertheless not as high as that set by the “very compelling circumstances” test in section 117C(6).

43.

Whilst it may be said that the self-direction involves the use of synonyms rather than the statutory language, it is apparent that the statutory language has caused real difficulties for courts and tribunals, as borne out by the fact that this is the second case before this court relating to that language within four years. In these circumstances I consider that it is appropriate for the MK self-direction to be adopted and applied, in accordance with the approval given to it in KO (Nigeria) itself.

44.

Having given that self-direction, and recognised that it involves an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.

45.

Such an approach does not involve a lowering of the threshold approved in KO (Nigeria) or reinstatement of any link with the seriousness of the offending, which are the other criticisms sought to be made of the Court of Appeal’s decision by the Secretary of State.”

Lord Hamblen then turned to the very compelling circumstances test. He said at [51] – [52]:

“51.

When considering whether there are very compelling circumstances over and above Exceptions 1 and 2, all the relevant circumstances of the case will be considered and weighed against the very strong public interest in deportation. As explained by Lord Reed in Hesham Ali at paras 24 to 35, relevant factors will include those identified by the European Court of Human Rights (“ECtHR”) as being relevant to the article 8 proportionality assessment. In Unuane v United Kingdom (2021) 72 EHRR 24 the ECtHR, having referred to its earlier decisions in Boultif v Switzerland (2001) 33 EHRR 50 and Üner v The Netherlands (2006) 45 EHRR 14, summarised the relevant factors at paras 72-73 as comprising the following:

• the nature and seriousness of the offence committed by the applicant;

• the length of the applicant’s stay in the country from which he or she is to be expelled;

• the time elapsed since the offence was committed and the applicant’s conduct during that period;

• the nationalities of the various persons concerned;

• the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;

• whether the spouse knew about the offence at the time when he or she entered into a family relationship;

• whether there are children of the marriage, and if so, their age; and

• the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled …

• the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

• the solidity of social, cultural and family ties with the host country and with the country of destination.”

52.

The weight to be given to the relevant factors falls within the margin of appreciation of the national authorities. As Lord Reed explained in Hesham Ali at para 35:

“35.

While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European level. The Convention on Human Rights can thus accommodate, within limits, the judgments made by national legislatures and governments in this area.”

Lord Hamblen then turned to consider the weight to be given to rehabilitation in the context of the very compelling circumstances test. It was common ground that rehabilitation was a relevant factor. Lord Hamblen said at [58] that, given that the weight to be given to any relevant factor in the proportionality assessment was a matter for the fact-finding tribunal, no definitive statement could be made as to what weight should or should not be given to any particular factor. In the case where the only evidence of rehabilitation is the fact that no further offences have been committed then, in general, that is likely to be of no particular weight in the proportionality balance. If, on the other hand, there is evidence of positive rehabilitation which reduces the risk of further offending then that may have some weight as it bears on one element of the public interest in deportation, namely the protection of the public from further offending. He approved an observation of Underhill LJ in this court that while the weight which the factor of rehabilitation will bear will vary from case to case, “it will rarely be of great weight” bearing in mind that the public interest in the deportation of criminals is not based only on needing to protect the public from further offending “but also of wider policy considerations of deterrence and public concern”.

The most recent of the three authorities on which the argument before us focussed was Yalcinv SSHD [2024] EWCA Civ 74; [2024] 1 WLR 1626. The critical issue in dispute was what was meant by very compelling circumstances “over and above those described in Exceptions 1 and 2”. After reference in detail to NA (Pakistan) Underhill LJ said at [57]:-

“57.

NA (Pakistan) thus establishes that the effect of the over-and-above requirement is that, in a case where the "very compelling circumstances" on which a claimant relies under section 117C (6) include an Exception-specified circumstance ("an Exception-overlap case"), it is necessary that there be something substantially more than the minimum that would be necessary to qualify for the relevant Exception under subsection (4) or (5): as Jackson LJ puts it at para. 29, the article 8 case must be "especially strong". That higher threshold may be reached either because the circumstance in question is present to a degree which is "well beyond" what would be sufficient to establish a "bare case", or – as shown by the phrases which I have italicised in paras. 29 and 30 – because it is complemented by other relevant circumstances, or because of a combination of both. I will refer to those considerations, of whichever kind, as "something more". To take a concrete example, if the Exception-related circumstance is the impact of the claimant's deportation on a child (Exception 2) the something more will have to be either that the undue harshness would be of an elevated degree ("unduly unduly harsh"?) or that it was complemented by another factor or factors – perhaps very long residence in this country (even if Exception 1 is not satisfied) – to a sufficient extent to meet the higher threshold; or, as I have said, a combination of the two.

58.

There is nothing at all surprising about this, at least in the case of a serious offender. Even if the over-and-above requirement were not explicit, it is in my view inherent in the structure of section 117C that a serious offender will need to meet a higher threshold than a medium offender in order to satisfy the test in subsection (6).”

Underhill LJ went on to reject the submission that it is necessary as a matter of law for a tribunal in a serious offender case to make explicit findings both as to (i) whether the impact of the Appellant’s deportation on his family would be unduly harsh and (ii) if so, what was the something more that meant that the higher threshold under (6) was met? At [62] he said that it was “logically inherent” in [a case where a tribunal has found that the very compelling circumstances test has been satisfied] that:-

“….the tribunal will have found the "something more" which is necessary to satisfy the higher threshold under subsection (6): see para. 57 above. I agree that it would in principle conduce to transparent decision-making if the tribunal identified with precision in every case what the something more consisted of; but that will not always be straightforward. The proportionality assessment is generally multi-factorial and requires a holistic approach. A tribunal must of course in its reasons identify the factors to which it has given significant weight in reaching its overall conclusion. It is no doubt also desirable that it should indicate the relative importance of those factors, but there are limits to the extent to which that is practically possible: the factors in play are of their nature incommensurable, and calibrating their relative weights will often be an artificial exercise. It would in my view place an unrealistic burden on tribunals for them to have to decide, and specify, in every case whether the something more consists of the Exception-specific circumstance being present to an elevated degree, or of some other circumstance or circumstances, or a combination of the two. There may be cases where for some reason peculiar to the case this degree of specificity is necessary; but I do not believe that there is any universal rule. We should not make decision-making in this area more complicated than it regrettably already is.”

Mr Malik relies on the statement of Underhill LJ in Yalcin that it is not necessary as a matter of law for a tribunal in a serious offender case to make explicit findings in the appellant’s favour both on whether the impact of deportation on his family would be unduly harsh and separately on the “something more” issue. He submits that it follows from this that the FTT judge in the present case need not have (as Mr Malik put it) “volunteered” that the effect of deportation on A would be unduly harsh. He could simply have gone straight to the issue of very compelling circumstances and decided that as a single issue.

Mr Malik placed great emphasis on the observation by Lord Hamblen at paragraph 5 of the judgment in HA (Iraq) that the very compelling circumstances test “requires a full proportionality assessment to be carried out”, weighing the interference with the rights of the potential deportee and his family under Article 8 against the public interest in his deportation. He also emphasises Lord Hamblen’s reference at paragraph 51 to the very compelling circumstances test involving weighing “all the relevant circumstances of the case against the very strong public interest in deportation”, and the apparent adopting by the Supreme Court of the long list of relevant factors set out in the decision of the Strasbourg court in Unuane v United Kingdom (2020) 72 EHRR 24. He submits that, like most balancing exercises, this one involves an evaluative judgment by the fact-finding tribunal, and provided that the relevant factors had been taken into account there will be no error of law and no basis for an appellate court to interfere.